Why the High Courts of State are unlikely to act as an independent force
Through Justin sage | October 31, 2021, 8:02 p.m. EDT
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State supreme courts can often have the final say in disputes with far-reaching consequences, and in years to come, they may be given final judgments on issues related to elections and abortion.
James L. Gibson
But today, the makeup of each court largely mirrors that of a state’s dominant political coalition, and courts cannot be expected to act as an independent oversight of policies that legislatures and executives advocate, according to a new book by political scientist James L. Gibson. and Michael Nelson.
The book, “Judging Inequality: State Supreme Courts and the Inequality Crisis”, is based on a study of each state high court and the nearly 6,000 decisions they have rendered on issues such as minority rights and workers between 1990 and 2015. The authors found that some states take significantly different paths to resolve inequality issues, meaning that whether a case goes to court can have a big influence on its outcome.
Gibson and Nelson also find that almost the majority of High Court justices who run for office actually end up on the bench through acting appointments after they retire. This offers tenure benefits once a judge appears on the ballot, which the authors say is another example of the interweaving of politics and justice.
“The bigger conclusion is that these courts are just too important to be allowed to be independent, and the governors know it,” Gibson told Law360. “Governors and legislatures will go to great lengths to ensure that like-minded judges sit on the bench and therefore do not undermine the political objectives of the government.”
The implications are profound, according to the authors.
“I don’t think people realize that the minority half of democracy is under serious threat today,” Gibson said. “If these courts are not independent, then who is going to protect the rights of the unpopular and the minority?
In an interview, Gibson and Nelson shared more takeaways from their research, why state supreme courts deserve more attention, and what questions remain unanswered. The interview has been edited for length and clarity.
What was the motivation behind a closer look at state supreme courts and their impact on inequality in the United States?
Nelson: It seemed like there had been a ton of attention at the federal level on the role Congress and the President have played in regards to inequality. And we were struck by the fact that the courts do a lot; there is an equal protection clause in the Constitution and we should pay attention to what the courts are doing. And at the same time, we were struck by the fact that state courts adjudicate so much more cases than federal courts and that, thanks to the powers of the police, they have so much broader jurisdiction to deal with types of cases. issues that really matter when it comes to inequality, this attention was lacking at both state and court levels.
The stated purpose of this book is to explain why some state supreme courts have been more likely to promote equality than others, taking into account different variables. What were your main conclusions?
Nelson: One of the most important is the fact that state supreme courts truly reflect the partisan makeup of a state’s legislative and executive branches. We should not expect to view these courts as guardians of rights who will take very different positions from what the legislature and the executive will do, because in fact most of these judges have to stand for election. And almost a majority of them, even elected, have been appointed to their posts. It means they are going to do the same kinds of things that the legislature and the executive are going to do.
Gibson: In states like Minnesota, judges are supposed to be elected by the people, but what we found is a pattern of strategic resignations. Judges retire prematurely, allowing a governor to appoint a replacement, and then that replacement runs for office, but the ballot shows who is the incumbent. This generates huge benefits. Some 90% of the elected judges in Minnesota and Georgia first came to the High Court not by election but by appointment of the governor.
The courts are too powerful for state governments not to make every effort to bring ideologically similar people to the state supreme court. Our conclusion is that they are generally quite successful in doing so.
This book is based on a study of over 6,000 cases between 1990-2015, which found that about half were in favor of equality and the other half were in favor of inequality. What types of cases were you evaluating?
Nelson: The 6,000 cases represent three general problem areas. One is generally the issue of the rights of minorities, which may be LGBT, access to the ballot. The second is about workers’ rights, such as at will employment disputes, which are proving to be extremely important with COVID-19 and all kinds of other things. The third category is access to justice, and that includes things like class actions, legal fees, etc.
What do you take away from the conclusions concerning the courts and whether they have rendered decisions more often in favor of equality than more often in opposition to it?
Nelson: If you look at the variation between states, you have states like New Jersey where you have an extraordinarily high percentage of cases decided in favor of equality, to states like Texas where the opposite is true. It really highlights the fact that you have 50 state legal systems and 50 different constitutions. When you look at average things are basically a toss, but when you get to a particular state it can still be a toss, but some of those parts are pretty heavy.
An important part of this topic is the great attention paid to the United States Supreme Court, which, you note, adjudicates less than 100 cases per year, which makes state high courts very influential on many issues. It’s something that doesn’t seem to have as much awareness as you probably hoped. Why do you think it is?
Nelson: When you think about what people learn in elementary school, what they learn is about the Supreme Court. I teach a course at Penn State and just mentioned state courts. I think most of the students hadn’t even thought about the fact that their states have supreme courts. People know there are local courts, but the fact that there is a whole parallel legal system – it’s just not something people think about. And so a lot of these courts can operate under the radar.
Gibson: It’s true, but it’s changing like crazy. It could be argued that these courts, for example the Supreme Court of Pennsylvania, had a gigantic impact on the outcome of the 2020 presidential election. Most electoral dispute litigation is at the state level. We believe that in 2024 it is quite conceivable that these courts will determine who will sit in the White House. If the election is near, the courts will tell us who will be president.
What other developments in today’s news show just how influential supreme state courts can be?
Nelson: Especially if the Supreme Court ends up gutting Roe v. Wade, what’s happening isn’t that abortion automatically becomes illegal everywhere, it’s that states have the ability to grant these rights to their citizens under their constitutions. When a state’s supreme courts make decisions based entirely on state law, they may offer protections beyond what the federal government provides.
What is the next step for this project; What questions has this book prompted that interest you?
Nelson: For me, one of the biggest questions is determining the difference between how these institutions work in practice and how they look on paper. We find in the book that a lot of judges in the states that elect their judges, the judges are actually appointed to their posts. And there is a lot of variation in what these elections actually look like. States like Ohio, Michigan have very well funded State Supreme Court races. In other states, elections are so weak that no one ever loses their job. Understanding the differences in how these elections work and how that translates into their decision making is a huge unanswered question.
Gibson: We document a dramatic increase in the number of conservative state Supreme Court justices from 1990 to 2015. In 1990, there was liberal domination; in 2015, it’s really about 50-50. Especially given their importance in electoral disputes, the question of whether Republicans are going to become dominant is a very important and interesting question that if we are not watching someone should definitely be paying attention.
–Edited by Robert Rudinger.